Citation Nr: 0303369
Decision Date: 02/26/03 Archive Date: 03/05/03
DOCKET NO. 98-19 759 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Buffalo, New York
THE ISSUES
1. Entitlement to service connection for a right knee
disability.
2. Entitlement to service connection for a left knee
disability.
3. Entitlement to service connection for a right ankle
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
C. Bryant, Associate Counsel
INTRODUCTION
The veteran had active duty for training from November 1972
to February 1973, and active military service from February
1973 to June 1973.
These matters come before the Board of Veterans' Appeals
(Board) on appeal from a May 1998 rating decision in which
the RO continued the denial of the veteran's claims for
service connection for right knee, left knee, and right ankle
disabilities, on the basis that new and material evidence had
not been submitted to reopen those claims. The veteran filed
a notice of disagreement in July 1998 and a statement of the
case (SOC) was issued in the same month. The veteran
submitted a substantive appeal in November 1998, with no
hearing requested.
By decision of May 2000, the Board determined that new and
material evidence had been presented to reopen the veteran's
claims, and remanded these matters to the RO for further
evidentiary development. Per Board remand instruction, the
RO obtained additional evidence and issued a supplemental SOC
(SSOC) in October 2002. However, as the denial of the claims
has been continued, they have been returned to the Board for
further appellate consideration.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the claims on appeal has been accomplished.
2. There is no persuasive medical evidence that the veteran
has right knee, left knee, or right ankle disability.
CONCLUSIONS OF LAW
1. The criteria for service connection for a right knee
disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 1991
& Supp. 2002); 38 C.F.R. §§ 3.159, 3.303, (2002).
2. The criteria for service connection for a left knee
disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 1991
& Supp. 2002); 38 C.F.R. §§ 3.159, 3.303, (2002).
3. The criteria for service connection for a right ankle
disability are not met. 38 U.S.C.A. §§ 1110, 5107 (West 1991
& Supp. 2002); 38 C.F.R. §§ 3.159, 3.303, (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
At the outset, the Board notes that, during the pendency of
this appeal, the Veterans Claims Assistance Act of 2000
(VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
and 5107 (West Supp. 2002). This liberalizing law is
applicable to this appeal. See Karnas v. Derwinski, 1 Vet.
App. 308, 312-13 (1991). To implement the provisions of the
law, the VA promulgated regulations published at 66 Fed. Reg.
45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a) (2002)). The VCAA and its
implementing regulations essentially eliminate the concept of
the well-grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R.
§ 3.102. They also include, upon the submission of a
substantially complete application for benefits, an enhanced
duty on the part of the VA to notify a claimant of the
information and evidence needed to substantiate a claim
(38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)), as well as the
duty to notify the claimant what evidence will be obtained by
whom (38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(b)). In
addition, they define the obligation of the VA with respect
to its duty to assist a claimant in obtaining evidence.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)).
Considering the record in light of the duties imposed by the
VCAA and its implementing regulations, the Board finds that
all notification and development action needed to fairly
adjudicate the claims on appeal has been accomplished.
As evidenced by the May 2000 Board remand and the October
2002 supplemental statement of the case, the veteran and his
representative have been furnished the pertinent laws and
regulations governing the claim and the reasons for the
denial of the veteran's claims. Hence, the Board finds that
they have been given notice of the information and evidence
needed to substantiate the claims, and, as evidenced by
various letters soliciting information and/or evidence (see,
e.g., RO's March 2001 notification), have been afforded
opportunities to submit such information and evidence.
The Board also finds that the statutory and regulatory
requirement that VA notify a claimant what evidence, if any,
will be obtained by the claimant and which evidence, if any,
will be retrieved by the VA, has been met. See Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159). By
letter of December, the RO specifically notified the veteran
of its efforts to obtain private treatment records from R.
Sood, M.D., and VA medical records from the VA Medical Center
(VAMC) in Erie, Pennsylvania. A March 2001 letter requested
that the veteran identify any additional medical treatment
providers and provided information concerning the notice and
duty to assist provisions of the VCAA, what medical and other
evidence the RO would obtain, and what information or
evidence the veteran could provide in support of the claim.
Hence, the duty to notify has been met.
The Board also finds that all necessary development has been
accomplished. Private medical evidence has been associated
with the claims file. Moreover, the RO has undertaken
reasonable and appropriate efforts to assist the veteran in
obtaining the evidence necessary to substantiate his claims,
to include procuring VA medical records from the Erie VAMC,
as well from as the VAMC in Buffalo, New York. In this case,
the Board is satisfied that the RO has obtained all available
medical records from all relevant sources identified in the
record, and that all such records have been associated with
the claims file. The Board notes that further VA examination
is not a necessary development measure because, as explained
in more detail below, the record contains sufficient medical
evidence to decide each of the claims. See 38 U.S.C.A.
§ 5103A.
Under these circumstances, the Board finds that adjudication
of the claims on appeal at this juncture, without directing
or accomplishing any additional notification and or
development action, poses no risk of prejudice to the
veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394
(1993). The claims are ready to be considered on the merits.
I. Factual Background
Historically, in March 1973, the veteran filed an original
claim of entitlement to service connection for right knee,
left knee, and right ankle disorders. In his claim, the
veteran cited injuries and medical treatment in service for
the disorders. The RO subsequently obtained complete service
medical records.
Service medical records include an October 1972 entrance
examination report, wherein the veteran was listed as normal
on clinical evaluation of the lower extremities and the feet.
Later, in November 1972, the veteran was deemed physically
qualified for active duty. On November 29, 1972, the veteran
complained of a history of knee damage following a tractor
accident. X-ray examination results were negative. The
physician diagnosed chondromalacia of the patella lateral
aspect.
On January 8, 1973, the veteran underwent medical treatment
following complaints of pain when marching. Physical
examination revealed muscle grinding and crepitus. X-ray
examination yielded no abnormalities. The physician
diagnosed bipartite patella chondromalacia. On February 1,
1973, the veteran received medical treatment following
complaints of persistent right knee pain of six months
duration. The veteran reported a history of a fracture of
the femur in August 1966. The physician diagnosed bipartite
patella with chondromalacia. He was deemed physically unfit
for the U.S. Navy. On February 12, 1973, the veteran
underwent treatment for left knee effusion of the left knee.
X-ray examination yielded no abnormalities. The veteran
returned on February 13, 1973, with complaints of recurrent
effusion and pain of the right knee. The physician described
a deformity of the femur resulting from an old fracture,
which in turn caused excess strain on the right knee. On
examination, the physician observed no effusion and
superficial swelling. X-ray examination results were
negative.
The veteran underwent VA examination in September 1973. The
VA examiner found no apparent swelling of the knees or
ankles. The veteran's knees were stable, bilaterally. The
VA examiner observed normal passive and active movement of
the knees. The veteran demonstrated an ability to squat,
although with some difficulty. The VA examiner noted slight
crepitation of the right knee on passive movement with some
irregularity of the bony structure of the right patella.
There was good movement of the right ankle in all directions.
X-ray examination revealed no evidence of fracture,
dislocation, or soft tissue abnormality of the knees and
right ankle. The VA examiner diagnosed a bilateral knee
injury and right ankle injury by history.
By rating decision of November 1973, the veteran's several
service connection claims were denied for lack of evidence of
current disability. Attached to his subsequent July 1974
notice of disagreement, the veteran submitted a letter he
rewrote based on a medical report by J. Valone, M.D.
According to the letter, in August 1966 the veteran suffered
a complete fracture of the femoral shaft, reduced by the use
of a Steinan pin. Satisfactory alignment and good callus
deposit were observed following reconstruction. Later, in
February 1967, the veteran reported falling on his right
knee. X-ray studies showed no evidence of fracture or bony
abnormality. The veteran was treated for contusion sprain or
strain of the right knee. The veteran fully recovered.
In December 1974, the RO received a certificate from the
office of Dr. Valone. In the report, Dr. Valone provided a
summary of clinical findings in August 1966, corresponding to
those reported by the veteran. The report included a
diagnosis of fracture of the right mid-femoral shaft.
The RO obtained treatment records from the Buffalo VA Medical
Center (VAMC). According to the records, dated in October
1986, the veteran complained of recurrent, anterior,
bilateral knee pain since 1972. Physical examination
revealed no abnormalities except bilateral patellar
tenderness. The VA physician observed good collateral
ligaments, no joint line tenderness, and no effusion. The VA
physician provided an impression of bilateral chondromalacia
patellae.
The veteran filed an application to reopen his claims for
service connection for right knee and left knee disorders in
October 1997. (The veteran added the claim for service
connection for a right ankle disorder in January 1998).
Additional private treatment records received in January 1998
from the Warren General Hospital reiterated clinical evidence
previously provided by Dr. Valone. The Warren General
Hospital records indicated that, in August 1966, the veteran
was pinned by a tractor, resulting in a fracture of the right
femoral shaft.
The veteran submitted service personnel records and
additional service medical records in November 1998. A
record of an in-service orthopedic evaluation dated in April
1973 was provided. In the April 1973 report, the veteran
complained of pain in the right ankle and knees. On physical
examination, the evaluating physician observed no significant
signs of abnormalities of either knee. The veteran's
collateral and cruciate ligaments were intact. There was no
effusion. There was full range of motion. Minimal
objective, patellar grating was identified. The physician
described the grating as similar to physiological situations
found in others, triggering no subjective complaints.
Examination of the right ankle disclosed a full range of
motion, with no significant swelling. The evaluating
physician included several notes concerning the veteran's
subjective complaints of generalized pain. X-ray examination
of the right ankle and knees demonstrated no significant
signs of abnormality. The evaluating physician diagnosed the
following: healed fracture of the femur (existing prior to
enlistment), right ankle sprain (subjective pain without
objective findings), and possible chondromalacia of both
knees (subjective, with symptoms out of proportion to these
diagnoses). He determined that the veteran's chondromalacia
and healed femur fracture "obviously existed prior to
enlistment" and, accordingly, any administrative decision
suggesting otherwise was in error. In conclusion, the
evaluating physician stated that the veteran's subjective
symptoms would improve to the asymptomatic point within a
reasonable time, and that ultimate prognosis was excellent.
An associated Physical Evaluation Board (PEB) hearing
transcript was also provided.
In his November 1998 substantive appeal, the veteran argued
that his service personnel records indicated his claimed
disorders were incurred in the line of duty. By Board
decision of May 2000, the veteran's application to reopen his
claims for service connection of right knee, left knee, and
right ankle disorders was granted. The reopened claim was
remanded to the RO for further development and
readjudication.
Pursuant to Board remand instruction, the RO obtained VA
medical records from the Buffalo VAMC. Records spanning July
1986 to May 2000 include, in relevant part, a January 2000
rheumatic disease evaluation. (The record suggests the
veteran was referred to the VA rheumatology department by his
treating physician, M. Karimi, M.D. to evaluate arthralgia
and rheumatoid arthritis.) According to the January 2002
report, the veteran's rheumatic factor (RF),
antimitochondrial antibodies (AMA), and erythrocyte
sedimentation rate (ESR) tests were negative. According to
the laboratory test results, the veteran's ESR was one, with
normal range being between zero to fifteen. The VA
rheumatologist determined that the veteran did not suffer
rheumatoid arthritis. The impression provided was "normal
musculoskeletal examination." The VA rheumatologist
prescribed no medications and determined there was no need
for follow-up. Later, according to a May 2000 report, the
veteran was reevaluated by the VA rheumatology department.
The VA physician noted that the veteran was recently
evaluated with a normal musculoskeletal examination, except
for right shoulder condition for which he was treated by Dr.
Swanson.
Medical records from the Erie VAMC provide no confirmed
diagnoses related to the veteran's symptoms of pain in the
knees for the period from May 1974 to July 1979. The veteran
was evaluated following complaints of bilateral knee pain in
May 1974, March 1978, and July 1979. X-ray examinations
provided by Erie VAMC in May 1974, March 1978, and July 1979,
were negative for fracture, dislocation, joint or soft tissue
abnormalities.
Private treatment records from the office of R. Sood, M.D.,
for the period from February 1999 to August 2000 provide
general diagnoses of rheumatoid arthritis. No supportive
clinical findings were provided. Rheumatoid arthritis factor
(RF) test collected in August 2000 was within normal limits
according to expected values. Additional private treatment
records submitted by M. Karimi, M.D., and R. Swanson, M.D.,
yielded no relevant evidence.
II. Analysis
Under the applicable criteria, service connection may be
granted for disability resulting from disease or injury
incurred or aggravated in service. 38 U.S.C.A. § 1110 (West
1991 & Supp. 2002). Such a determination requires a finding
of a current disability that is related to an injury or
disease incurred in service. Watson v. Brown, 4 Vet.
App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141
(1992). Service connection may be established under the
provisions of 38 C.F.R. § 3.303(b) when the evidence,
regardless of its date, shows that a veteran had a chronic
condition in service or during the applicable presumptive
period. Service connection also may be granted for any
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
The veteran contends that he currently suffers from a right
knee, left knee, and right ankle disabilities that are
related to respective injuries in service. However, the
post-service medical evidence fails to provide persuasive
evidence of any medical diagnoses underlying the veteran's
current reports of bilateral knee and ankle pain. Hence,
there is no persuasive medical evidence of any current right
knee, left knee, or right ankle disability.
Most recently, the veteran was evaluated at the Buffalo VAMC
in January 2000, following complaints of bilateral knee and
ankle joint pain. The reported impression was normal
musculoskeletal examination. No disorder of an orthopedic
nature was reported, and the VA physician specifically ruled
out possible rheumatoid arthritis. The Board finds that this
evidence, based upon examination of the veteran and
consideration of his documented medical history and
assertions, is probative evidence on the question of current
disability, and notes that there is no persuasive evidence to
contradict the January 2000 findings. A reported impression
of bilateral chondromalacia patella by a VA physician in
October 1986 was based solely on symptoms of tenderness of
the patellar region, bilaterally. The VA physician otherwise
indicated no clinical evidence of any abnormalities of the
knees. Moreover, while records from the office of Dr. Sood
include general diagnoses if rheumatoid arthritis affecting
the joints (not specifically limited to the right knee, left
knee and/or right ankle), there is no clinical evidence to
support any such diagnosis. In fact, Dr. Sood's own
laboratory test results dated in August 2000 indicate that
the veteran's RF (rheumatoid factor) test results were within
normal limits. Furthermore, the veteran has neither
presented nor alluded to the existence of any current medical
evidence otherwise establishing the presence of any right
knee, left knee, or right ankle disability.
The Board observes that the post-service medical evidence
that is discussed above is consistent with service medical
evidence in not reflecting any definitive, well supported
diagnosis for the veteran's complaints. A comprehensive
evaluation during service in April 1973 culminated in
diagnoses of possible bilateral knee chondromalacia and acute
sprain of the right ankle; however, neither assessment is
supported by objective clinical findings. Indeed, at that
time, there were no significant objective signs of
abnormalities of the knees. Objective evidence of patellar
grinding was described as minimal, similar to a common
physiological occurrence found in other people. Overall, the
military physician noted that the veteran expressed
disproportional pain in comparison to objective evidence.
As indicated above, Congress has specifically limited
entitlement to service-connection for disease or injury to
cases where such incidents have resulted in a disability.
See 38 U.S.C.A. § 1110 (emphasis added). Hence, in the
absence of proof of a present disability (and, if so, of a
nexus between that disability and service), there can be no
valid claim for service connection. Gilpin v. West, 155 F.3d
1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223,
225 (1992). Moreover, pain alone, without a diagnosed or
identifiable underlying malady or condition, does not in
itself constitute a disability for which service connection
may be granted. See Sanchez-Benitez v. West, 13 Vet. App.
282, 285 (1999), aff'd sub nom. Sanchez-Benitez v. Principi,
239 F. 3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App.
22, 31-32 (1998).
The Board does not doubt the sincerity of the veteran's
belief that he currently has right knee, left knee, and right
ankle disability resulting from his military service.
However, as a layman without the appropriate medical training
and expertise, he is not competent to provide a probative
opinion on a medical matter. While a layman such as the
veteran can certainly testify about his in-service
experiences and current symptoms, he is not competent to
diagnose any of the claimed disabilities, to provide an
opinion linking any such disability to service. See Bostain
v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown,
10 Vet. App. 183, 186 (1997) ("a layperson is generally not
capable of opining on matters requiring medical knowledge").
In the absence of probative (persuasive) medical evidence
establishing that the veteran has right knee, left knee, or
right ankle disability-the very conditions for which service
connection is sought-each claim for service connection must
be denied. Because the competent evidence neither supports,
nor is in relative equipoise on the question of the existence
of current right knee, left knee, or right ankle disability,
the benefit-of-the-doubt doctrine is not applicable in the
instant appeal. See 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet. App. 49, 55-57 (1990).
ORDER
Service connection for a right knee disability is denied.
Service connection for a left knee disability is denied.
Service connection for a right ankle disability is denied.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.